06/16/2018

A Response to Professor McConnell on Presidential Self-PardonsBrian Kalt

[Ed.: Continuing our discussion of presidential self-pardons, we welcome this guest post from Brian Kalt, Professor of Law & Harold Norris Faculty Scholar, Michigan State University College of Law. He is the author of Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale Law Journal 779 (1996). Thanks again to Andrew Hyman for facilitating the discussion.]

Put simply, I disagree with Professor McConnell about the proper interpretation of the debate between Edmund Randolph and James Wilson about the pardon power. He is correct that I did not before consider the idea that when Wilson talked about prosecuting the president, he was referring to an impeachment trial and not a criminal trial. Thanks to Professor McConnell, I have now considered that possibility--but I reject it.

The nub of my disagreement with Professor McConnell appears in his statement in his blog post that "To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation." Professor McConnell thus reads the debate in the context of his assumption--based on what I am not sure--that Randolph presumed that self-pardons were possible. But he offers no basis to conclude that Randolph (or anyone else present) silently presumed that Presidents had this awesome new power. To me, the more obvious reading is that (1) nobody thought self-pardons were possible; and (2) Wilson was referring to criminal prosecution. That reading explains not only why Wilson's reading assuaged the delegates, but why Randolph had not moved to prohibit self-pardons in the first place.

It also dovetails with Alexander Hamilton's statement in Federalist No. 69 that "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law."

The following is a deeper dive into the debate, taken mainly from my 1996 Note:

Because the Convention debate as rendered in Madison's notes did not mention self-pardons explicitly, there are three possibilities. The Framers either: (1) did not consider the possibility of self-pardons; (2) silently presumed that self-pardons would be invalid; or (3) silently presumed that self-pardons would be valid.

1. Oversight

When Randolph suggested the possibility of presidential treason, his scenario, a treasonous executive pardoning his treasonous lackeys, was similar to the well-known episode in which King Charles II pardoned Lord Danby to prevent Danby from being impeached--the impeachment trial would have revealed Charles's own perfidious dealings with France. In the wake of the Danby pardon, Parliament restricted pardons from preempting impeachments.

Randolph's analogy to the Danby episode could only go so far, though. The status of the King as above the law--he could do no wrong--meant that there was no such thing in Britain as a self-pardon. When contemplating a Danby-like situation, therefore, Randolph might have overlooked the fact that the President was different. In other words, perhaps the self-pardon was just lost in the translation. This may be why Randolph's solution was to eliminate the treason pardon, not to prohibit self-pardons, which would have been a more obvious and direct solution to the problem of a treasonous President if, as Professor McConnell suggests, Randolph thought self-pardons were possible.

Wilson's response to Randolph took the difference between King and President into account: the President could be impeached. Wilson also said that the President could be prosecuted--I read this as referring to criminal prosecution, while Professor McConnell thinks it refers to the impeachment trial. But either reading is consistent with nobody considering the possibility of a self-pardon. Perhaps Wilson made the implicit assumption that the President could only be weaker than the King; that the powers of the former were less than (or at most equal to) those of the latter. As such, it might not have occurred to Wilson that the President could have a new power.

If this was the case--if the continuity between the English and American pardon powers, coupled with the absence of self-pardons in the former, lulled the Framers into missing the possibility of self-pardons--then no positive answer to the self-pardon question can be found in the Convention debates.

2. Implicitly Invalid

In the discussion of treasonous Presidents trying to skirt the law, perhaps the possibility of a self-pardon occurred to one of the dozens of people in the room. Thus, a second explanation for the Framers' silence was that they presupposed a President could not pardon himself--that the illegality of self-pardons literally went without saying. It would have been a violation of natural law for a man to be his own judge; if anyone believed otherwise it would have been a remarkable assumption that one would think would have occasioned some discussion.

When Wilson answered Randolph's concern of a "guilty" President by pointing out that the President could be prosecuted, he might have been referring to criminal prosecution rather than an impeachment trial. If Wilson and everyone present assumed that a self-pardon would be invalid, this would have provided powerful reassurance. Wilson was reminding everybody that the pardon power did not place the President above the law.

Nobody objected to Wilson's interpretation by arguing, "That cannot be; the President in such a situation could just pardon himself and avoid criminal prosecution." Professor McConnell considers that evidence that Wilson was not referring to criminal prosecution. I consider that evidence that nobody thought self-pardons were possible.

3. Implicitly Valid

If, as I believe, "prosecution" referred to criminal prosecution, it is implausible to think that the delegates accepted, without comment, that self-pardons were possible. Wilson's reassurance was that the President could be prosecuted--if anyone thought that the President could head that off with a self-pardon, surely they would have said so. Otherwise, Wilson would have been asking the Convention to rely on a perfidious President's self-restraint, repentance, and willingness to suffer the penalty for treason even though he had the power to avoid it. If this was what Wilson meant, his argument surely would not have carried the day.

But even under Professor McConnell's reading--that "prosecution" referred only to an impeachment trial--it is not plausible that the Framers presupposed a President could pardon himself. It seems more likely that Randolph did not consider self-pardons than that he had no objection to them. After all, if the possibility of pardoning his confederates was "too great a trust" for Randolph to repose in the President, why would the possibility of him pardoning himself (and for any crime, not just treason) not be much worse?

Furthermore, it hardly seems that Wilson would have been able to assuage the Convention's fears by pointing out that a treasonous President could be impeached. Allowing a traitor-President to be impeached but not criminally prosecuted would not have been very reassuring at all, especially given that in Randolph's scenario all of the President's treasonous subordinates would have been pardoned and immune from criminal prosecution as well. Remember that treason was narrowly defined in the Constitution as "levying war" against the United States or "adhering" to its foes. Randolph's scenario was not one of mere political differences but of outright insurrection.

Ultimately, one can only speculate as to what the Framers thought about the self-pardon. Given the course of their debate, however, it is most reasonable to conclude that they believed the power to be invalid, or at least that they did not think about it.